This week’s Saturday Evening Review is another “classic” edition, taking a new look at some familiar legal scholarship. Or perhaps this scholarship is not so familiar? It treats Art. III § 2’s provision:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

As a reminder, this provision was one of the provisions Justice Marshall cited in Marbury v. Madison, as inconsistent with the section 13 of the Judiciary Act of 1789.

So what does this provision in Art III § 2 mean? And how often is it actually invoked?

A Student Note, The Original Jurisdiction Of The United States Supreme Court, 11 Stan. L. Rev. 665 (1959), provides a trenchant review of the 123 cases arising under this constitutional provision from the Court’s first term in 1789 until 1959. It has a terrific appendix of the cases, which, if accessed in an electronic database, will provide links to case documents, including motions as well as opinions.

The Article is mostly a survey, and to the extent it has a thesis, it is this:

It is apparent that the Supreme Court is reluctant to exercise its jurisdiction in original cases. The very nature of an original proceeding suggests the difficulties confronting an appellate court forced to assume the role of a trial court.

Id. at 695.

A 1993 article, Discretionary Gatekeeping: The Supreme Court's Management Of Its Original Jurisdiction Docket Since 1961, 45 Maine L. Rev. 185 (1993), serves as an update of the 1959 note, emphasizing state v. state controversies. Its author, Vincent McKusick, is a former Chief Justice of the Maine Supreme Judicial Court, former law clerk to Judge Learned Hand and Felix Frankfurter, and a special master in three state v. state original jurisdiction cases in the United States Supreme Court. He concluded that

The Supreme Court's failure to expand the use of its original jurisdiction does not come from any lack of trying on the part of potential plaintiffs eager to “start at the top” to get a final resolution of disputes involving states. The lesson to be learned from the 116 active original jurisdiction cases on the Supreme Court's docket since 1961 is that those plaintiffs should look elsewhere to litigate their claims, except for those very few that unmistakably fall within the Court's traditional exercise of its trial court jurisdiction.

Id. at 205. Like the 1959 Note, McKusick's article includes some appendices, which again have useful hyperlinks if accessed in a database, with materials about the 116 cases from 1959 until 1993.

The Supreme Court’s original jurisdiction is not something that garners much attention from ConLawProfs, seeming more suitable for a course on FedCourts (which many of us also teach). But state v. state controversies and lawsuits against foreign ambassadors make for some interesting issues – looking forward to in-class problems for next semester, perhaps connected to Marbury v. Madison.

The Huffington Post here, as well as other outlets, are reporting that Michael Bennet, 44, Denver's public schools superintendent, is the Colorado Gov's choice
to fill a Senate vacancy that will be created by the promotion of Sen.
Ken Salazar to interior secretary in the Obama administration:

The move surprised many Republicans and Democrats, who considered
schools superintendent Michael Bennet a dark horse candidate for the
Senate spot because of his lack of legislative experience. The
44-year-old Democrat has never campaigned for or held public office.

And in keeping with the no campaign or previous public office theme, Caroline Kennedy, looks likely to be named at NY's Senator. Our ConLawProf colleague Darren Hutchinson has one of the best blog comments, comparing the "taint" of Kennedy with the "taint" of Burris here.

Adam Liptak reports in today's NYT that the new Obama administration will face an early test of executive authority to detain legal U.S. residents as enemy combatants and to hold them indefinitely without charge in Al-Marri v. Pucciarelli. I've posted several times on Al-Marri, most recently (with links to others) here.

Liptak:

During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.

As the article makes clear, the Obama administration could maintain the Bush administration position at the Supreme Court (that the executive has authority to detain lawful U.S. residents indefinitely and without charge), or it could change. Whatever it does, the Fourth Circuit opinion upholding executive authority looms in the background. Thus the new administration will need to consider if--and how hard--to press to overturn it.

The transition team hasn't given us any clues. And candidate Obama's Q&A with Charlie Savage just over a year ago in the Boston Globe doesn't definitively answer the question. Here's what candidate Obama said:

I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

And:

The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.

Both quotes speak only to "U.S. citizens" (not to noncitizens lawfully within the U.S., like Al-Marri), and the first speaks only to "plenary authority" (not to Article II authority augmented by the AUMF or some other Congressional authorization).

Irrespective of prior statements, it'd be hard politically for President Obama to stay the course and maintain the Bush administration position in the case.

Whatever the new administration does at the Supreme Court, it has another, closely related problem: What to do with Al-Marri. The Bush administration opposes deportation (because it sees Al-Marri as a continuing threat); a criminal case in the Article III courts might be impeded by lack of evidence (if the only good evidence against him was obtained by torture); and continued detention as an enemy combatant is politically nonviable (as above).

Levinson's is the clearest and plainest reading of the text, especially the Seventeenth Amendment:

That is, I do believe that the text of the 17th Amendment, read in its most ordinary sense, allows a state to empower its governor to make a temporary appointment (even if I do concede that the Senate could refuse to seat the appointee if one thought that the governor had made the appointment as part of criminally corrupt bargain). Governor B. is the fully legal governor of Illinois unless and until he resigns or is impeached. To say that the untoward conduct of which he has been accused deprives him of the power that the Constitution authorizes Illinois to give him leads to all sorts of conundrums . . . .

Or as a commenter wrote on PrawfsBlawg:

The Seventeenth Amendment authorizes states to let governors fill vacant Senate seats by appointment. Illinois has authorized its Governor to do so. Blagojevichis is the Governor of Illinois. Blagojevich has appointed Burris.

(This commenter went on to write that "[t]here is no plausible legal basis for the Senate to refuse to seat Burris, and any Senator who votes to refuse to seat Burris is voting to violate the Constitution." I think this goes too far; there certainly are plausible (even if "too clever by half," as Levinson argues) arguments--links in my previous post--that the Senate may do this.)

The Seventeenth Amendment analysis (also distinguishing Powell v. McCormack) is the cleanest, and it leaves little, if any, room for the Senate to block Burris.

But as Lyle Denniston points out, any Senate action blocking Burris may be a nonjusticiable political question, anyway, and it therefore may never reach the courts (or Court).

"Political Question," of course, means that the political branches are better suited to deal with the problem than the judiciary. And here's a possible political solution (reported by Denniston): The Senate could investigate Blagojevich's appointment of Burris (and hold him in limbo) until something happens to Blagojevich. Then Blagojevich's successor (or, I suppose, a vindicated Blagojevich) could appoint a replacement without the cloud over Burris.

In this final installment of “In Case You Missed It . . . ,” we review some of the equal protection stories that might have flown below your radar.

The debate over same sex adoptions continues in Florida.While my co-editor reported last month that a Florida judge ruled the state ban on same sex adoptions unconstitutional, the WSJ reports that the state has filed an appeal to the Florida Supreme Court.

In other news from the Sunshine State, Governor Charlie Crist may be facing a lawsuit.Why?The governor stated that that the list of persons submitted to him to fill judicial vacancies was not racially diverse, and asked the nominating board to provide a less homogenous list.A group of lawyers is considering a lawsuit.

Finally, a California court ruled that Los Angeles magnet schools could use race as a factor in their admissions process despite Proposition 209.The ruling is based on the technical (specifically, the fact that Prop 209 exempted school systems with existing segregation orders), rather than the substantive, but it demonstrates that we are likely to see affirmative action cases for some time that raise creative arguments to challenge such initiatives.

In this installment of things you might have missed while celebrating the holidays or grading (okay, mostly grading), we focus on an important story from the executive branch.

The last eight years have seen an unprecedented expansion of executive power.After the election, those in our field wondered, “With two constitutional law scholars in office, will there be an attempt to reign in the excesses of the previous eight years?”It seems we have a partial answer to this question.

When we speak of the expansion of executive power, the usual focus is the Commander-in-Chief.However, it is uncontroversial to say that the outgoing Vice President tried to greatly expand the powers of that office during his tenure.In a recent ABC News interview, Vice President-Elect Biden stated that Cheney’s view of a unitary executive was “mistaken,” and that Cheney’s view “at a minimum . . . weaken[ed] our standing in the world and weaken[ed] our security.”Biden’s statement appears to be more than more lip service.A recent report by politico.com lists some of the steps Biden plans to take to contract the vice presidential role:

·Biden will not sit in on the Senate Democrats’ weekly caucus

·Biden will not maintain an office outside the House floor

·Biden will not receive a separate daily intelligence briefing

Time will reveal whether the changes that Biden proposes will achieve their desired effect.However, those that respect the role of the constitution should be cheered by Biden’s words.For the past eight years, the current vice president has created an office that is neither legislative nor executive (unless it suits his purposes) – and thus beyond the oversight of either branch.These steps are a good indication that the vice presidency will be returned to Article II where it belongs.

Tomorrow, the final installment of this series will focus on equal protection. See you then!

The PBS News Hour with Jim Leher had an interesting discussion today with Con Law profs Pam Karlan of Stanford University (oft-mentioned as a possible Obama judicial appointment) and Paul Cassell of University of Utah (a federal district judge from 2002-2007) predicting the impact of an Obama Administration on the federal judiciary.

Paul Cassell has this to say in part:

And I think the real concern is whether President Obama
will bring back something like the Warren Court years, where it seemed
like every few months there would be a new constitutional right that
was discovered in the Constitution, a constitutional right that struck
down acts of Congress or the views of the state legislatures, the views
of the American people.

Cassell predicted that Obama appointees would have "more of an activist bent than you would have seen under a President
McCain or you have seen in the last eight years from President Bush."

Karlan disagreed:

activism is one of those words that's a little
complicated, because I think a lot of President Bush's appointments to
the bench have been far more activist than the appointments of
Democratic presidents.

I mean, if activism means striking down
laws that were enacted by democratically elected, popularly elected
legislators, then what do we say about conservatives on the Supreme
Court, for example, who strike down the D.C. gun control act or
conservative judges who refuse to enforce disability laws that Congress
passed against state governments?

The full transcript is available here (but note that the pull quote under Cassell's photo is actually Karlan's statement).

Illinois Gov. Rod Blagojevich's appointment of Ronald Burris to fill President-Elect Obama's Senate seat is by now a too familiar story. The NYT reports today what we also expected: Senate Democrats will seek to block the appointment.

But can they do it?

This is the hot topic in the blogosphere. I'll outline the contours of the debate; links follow.

Article I, Section 3, of course, sets the age, citizenshp, and residency qualifications for senators; there's no serious question that Burris meets them. And under Powell v. McCormack, the Senate could only refuse to seat Burris if he didn't meet these. Several commentators end there: The Senate can't block Burris because of Powell.

But Article I, Section 5, empowers the Senate to "be the Judge of the Elections, Returns and Qualifications of its own Members." There was no election--Burris was appointed--and there's no question about Burris's qualifications. But the Senate may be able to block Burris based on flawed "Returns"--the governor's appointment--as long as this isn't an end-run around Powell.

And the Seventeenth Amendment permits a state legislature to empower the governor to fill a Senate vacancy "until the people fill the vacancies by election as the legislature may direct." The Senate may be able to block the appointment based on an improper executive appointment. Reading the Seventeenth Amendment to modify Article I, Section 5, this approach may get around the restriction in Powell.

Jack Balkin and Mark Tushnet at Balkinization have the best analysis and commentary. The Huffington Post reports on the views of "legal scholars" here; DailyKos here; the Faculty Lounge here.

Rick Hills started an interesting discussion at PrawfsBlawg on ERISA preemption of state and local "fair share" laws. In general, these laws require employers to provide medical coverage for their employees, or to pay a tax (that goes into, e.g., a state health insurance fund). In effect, employers gain a tax credit for providing health insurance to their employees.

Employers have claimed that ERISA preempts these efforts, because, in the language of ERISA preemption, they "relate to" employers' ERISA plans. Circuit have split on this argument: The Fourth Circuit ruled that ERISA preempts, while the Ninth Circuit ruled that it doesn't.

But here is where I am a die-hard lover of federalism: As dumb as employer mandates are, centralizing debate over health care through a broad construction of ERISA preemption is even dumber. Such centralization is an outrage against the democratic process both locally (by suppressing the efforts of those zany San Franciscans) and nationally (by letting Congress off the hook of confronting the relationship between health care and employment). San Francisco hurts no one but itself and its own residents by burdening business and driving away capital to the 'burbs. The claim that national businesses will suffer some external cost outside San Francisco from disuniform regulation is patently baloney: Any business that operates in any city already must uncontroversially incur the costs of researching and complying with local zoning codes, local taxes and fees, local building codes, local safety regulations, etc. The marginal cost of insuring that one's local branch complies with the local complying health care law is close to zero.

Here's an area that begs for the kind of broader analysis that Hills, Fisk, Oswalt, and others bring. With the failure of the federal government to lead on national health care, state and local governments have sought to fill the void, responding to the increasingly desperate needs of their citizens. But they're (at least potentially) constrained by federal ERISA preemption. In short, the federal government refuses itself to step up and address the health care crisis, and also curtails state and local efforts to solve the problem.

This problem is rich with preemption, federalism, distributional, and governance issues, and it makes a great case-study in some of the practical problems with constitutional preemption.

Phair argues that the Oath and the Take Care Clause, along with the structure of the constitution, create constitutional constraints on the lame duck president, and that the nature and extent of the constraint depend upon five factors. Phair:

While there is room for disagreement as to what actions may be so constrained, and a lame-duck President is likely only answerable to himself and historians, a strong argument can be made that a lame-duck President has a constitutional duty to avoid taking any unilateral, otherwise avoidable actions during the transition period that would significantly tie the hands of an incoming administration in many circumstances. The circumstances giving rise to such a duty would likely depend on consideration of five key factors:

1. Whether the proposed policy or course of action is a unilateral exercise of executive power that is unchecked or opposed by Congress;

2. The extent to which the proposed policy or course of action would bind or tie the hands of the President-elect against his wishes, including whether the President-elect could undo the action and, if so, how difficult it would be to accomplish;

3. The extent to which the proposed policy or course of action is avoidable;

4. The extent to which the proposed policy or course of action represents the popular will, taking into account the lame-duck President's popular support; the salience of the issue in the election; and the degree to which voters can be fairly deemed to have passed judgment on it; and

5. The institutional interests of the presidency and the best interests of the country.

Phair applies the factors to the Iraq SOFA and Strategic Framework, and to the Bush administration midnight regulations, and argues that these actions are unconstitutional. As to the midnight regulations, he explores possible fixes for the Obama administration under the Congressional Review Act.

Phair's analysis is thoughtful and persuasive--even if you take issue with the factors--but it fails to give enough attention to the constitutional counterpoints, principally that the Term Clause gives a president a term of four full years (with full Article II powers). As a result, the Brief, it seems, is really an argument against a transition period (and not an argument for constitutional constraints during the transition period, which would have to be balanced more seriously against the Term Clause). This doesn't make the Brief any less persuasive, thoughtful, or valuable. But it places Phair's argument in just slightly different company, most notably (and recently) with Sandy Levinson's series of posts criticizing the transition period on Balkinization.

Whether an argument for constraints on a lame duck president or an argument against a transition, it's well worth a read.

Although the holidays technically aren't over yet, people are gradually easing back into the "work" mode. Well, my goal this week is to provide analysis of some stories that you might have overlooked while grading bluebooks, eating pumpkin pie, or chatting with family and friends.

As frequent readers of the site know, my co-editors and I have mentioned the outgoing administration's use of midnight regulations several times in the space. One of the more recent midnight regulations is such a doozy that it deserves a mathematical equation of its own: First Amendment rights + Fundamental rights+ Midnight Regulation = A big problem. I'll explain.

The regulation at issue is the medical "conscience" exception. As previously explained in this blog, the goal of the proposed regulation was to prevent entities recieving Title X funds from discriminating against health care workers with moral or religious objections to performing abortions or similar services to women who request them. Two things should be noted before we proceed. First, there are already several regulations in place - as well as Title VII of the 1964 Civil Rights Act - that prevent discrimination based on religious convictions. Second, as the Wall Street Journal reports, "Advocates on both sides of the issue have interpreted the rule as also protecting workers who refuse to participate in providing birth control or other care they don't support."

The First Amendment portion of the equation is not complicated. Of course, those who have strong religious - and perhaps even moral, non-religious - objections, could and should be protected under the Free Exercise clause. I believe it is not controversial in the least to say that those with true objections to a procedure that is hotly debated on medical, physchological, religious, and ethical grounds should be protected.

The Fundamental Rights portion of our equation is more complicated. While most would agree that the providers have a right of conscience, at what point does the professional's conscience give way to the duty to provide the best service to the patient - even if that is not what a doctor would choose for herself? What would happen if every single OB/GYN in the nation decided that they would refuse to perform abortion services? Such a drastic turn of events would render a woman's fundamental right to choose regarding her pregnancy a meaningless tenent - a right without remedy. While this hypothetical is extreme, it is true that the number of abortion providers is steadily declining. At what point can - or should? - we say to health care providers, "Your right to act on your conscience ends here." It's an extremely difficult line to draw. Moreover, when two fundamental rights clash, which should prevail? It will likely depend on the method of interpretation and jurisprudence favored by the particular justices hearing the cases, which means there is no clear way to predict the outcome.

The second fundamental rights issue is that while most would not quibble with persons being exempted from performing actual abortions, the regulations are arguably broadening the scope beyond abortion. Newsweek states that under the regulation, a pharmacist could refuse to supply Plan B - a contraceptive that can prevent pregnancy after unprotected liasons - although Plan B is incapable of terminating an existing pregancy. Even if someone is adamantly opposed to abortion, should this objection be extended to contraception unless it is an explicit religious tenet? This is a dangerous development as linking abortion and contraception will potentionally result in lowered protection for contraception as well. Moreover, it leads inevitably to the question of where will the argument end? Jill of Femiste cogently explains the "slippery slope" argument as follows:

So what if a pharmacist wakes up tomorrow and decides that AIDS is your punishment for being gay, or your STI is a punishment for being a big whore, and refuses to fill your prescription for the medication you need? What if a Scientologist decides that he shouldn’t have to leave his moral beliefs at the door, and refuses to write or fill any prescriptions for psychiatric meds? What if a Christian Scientist decides that he is under no obligation to provide any health care at all? What if an ER doctor or EMT’s religion forbids them from touching someone of the opposite sex and so they refuse to treat half the population, even in emergencies?

The next part of the equation is the Executive (and legislative) response. For his part, President Elect Obama is already considering ways to reverse the regulation. Soon-to-be Secreatary of State Clinton and Senator Patty Murray (D-Wa) have vowed to introduce legislation to block the measure. However, either method would be time-consuming, and there is no guarantee the Congressional route would be effective.

This is a fascination regulation that raises a number of issues, so we will continue to update on any further developments.

Cass Sunstein (Harvard, Chicago) recently published a characteristically thoughtful and important piece, whose title asks a provocative and perhaps surprising question: Is OSHA Unconstitutional? The article appears in the most recent issue of the Va. Law Review; it's also posted on ssrn. I highly recommend this.

OSHA's constitutional problem is one of nondelegation: It lacks an "intelligible principle" to guide and limit agency discretion. Sunstein explains:

[The core provision of OSHA] defines an "occupational safety and health standard" as one that is "reasonably necessary or appropriate to provide safe or healthful employment or places of employment." When the Secretary of Labor issues regulations governing tractors, ladders, or electrical equipment, the only question to be asked is whether one or another standard is "reasonably necessary or appropriate."

Needless to say, this is a rather significant problem, given OSHA's sweep. But the nondelegation problem is only part of Sunstein's interest: He also seeks "to shed light on some pressing questions for both regulatory policy and administrative law." And these are indeed pressing; Sunstein:

Over 5000 Americans die each year in the workplace, and more than four million are injured or sickened by the conditions of their employment. Surely steps could be taken to reduce these deaths, injuries, and illnesses.

Sunstein explores three judicial solutions to these problems. First, and most aggressively, courts could rule OSHA unconstitutional. This solution would require Congress to reconsider OSHA--thus increasingly "democratic engagement with that question"--and "might produce a better, because more informed, occupational safety law." But the solution is also obviously dramatic and disruptive and, as Sunstein argues, unnecessary.

Second, and least aggressively, courts could set floors and ceilings for agency actions, building on current agency practices. This approach has the benefit of avoiding the constitutional question--the Avoidance Canon--but still gives the agency perhaps too much discretion.

Finally, courts could adopt a reasonable relation test between costs and benefits of regulations. Sunstein explains:

The agency should therefore be required to show, not that a regulation satisfies a strict cost-benefit test, but that the costs have a reasonable relationship to the benefits. If the monetized costs exceed the monetized benefits, the agency should be permitted to proceed so long as there is such a relationship between the two. . . . The agency could well decide that a rule would have desirable welfare effects even if the monetized benefits were lower than the monetized costs.

Sunstein argues that this third solution both avoids the constitutional issue and provides sufficient guidance to the agency. It also puts the OSHA issues in the sunshine. But, as he recognizes, the solution also leads to its own problems: OSHA doesn't obviously require this kind of loose cost-benefit analysis; and it's not clear why the courts should be able to save a statute from nondelegation problems when agencies themselves, under American Trucking, cannot. Sunstein argues that invocation of the Avoidance Canon resolves both problems: The courts may--even if not must--adopt the loose cost-benefit approach and thus validly interpret OSHA to avoid the nondelegation problem.

In addition to the constitutional analysis and argument, this article is an excellent springboard for discussions of institutional roles and competence, democratic engagement and legitimacy, and the appropriate role of cost-benefit analysis in agency decisionmaking. I highly recommend this.

Edwin Cameron, has been appointed to the South Africa Constitutional Court.

As South Africa's Sunday Times describes him in an article confirming his recommendation yesterday here:

Judge Cameron, currently a Supreme Court of Appeals judge, is one of
South Africa’s most prominent people living with HIV and was a vocal
critic of Thabo Mbeki’s Aids denialism. His book, Witness to Aids,
contains a scathing critique of Mbeki’s Aids policies, which earned him
a snub by Mbeki the last time the JSC recommended him for the job.

Another SA news source confirms the appointment today here, and SA con law prof Pierre de Vos confirmed the appointment on his blog, Constitutionally Speakinghere.

Cameron's role as an outstanding jurist in SA was recently the topic of a symposium,Judges and the world: A symposium in celebration of the work of Edwin Cameron,held at the Oliver Schreiner School of Law, University of Witswatersrand, and organized by Angelo Pantazis (Head of School) and Marius Pieterse (whose work was a Saturday Evening Review feature here). A description of the conference is here.

As an openly gay man serving on his nation's highest court, Cameron is not a first; that distinction seems to belong to Justice Michael Kirby of Australia's High Court, appointed in 1996, although he did not publicly announce his sexuality until 1999, wikipedia bio available here.